MEMORIAL  AND  ARGUMENT 


SUBMITTED  TO  THE 


CHEROKEE  COMMISSIONERS, 


IN  THE  CLALM  OF 


NANCY  REED  AND  CHILDREN, 


CHEROKEE  INDIANS  OF  NORTH  CAROLINA. 


Value  of  a  reservation  of  six  hundred  and  forty  acres  of  land, 


GRANTED  TO  THBM  UNDER  THE  EIGHTH  ARTICLE  OF  THE  CHEROKEE 

TREATY  OF  1817,  AS  MODIFIED  AND  CONTINUED  BY  THE 

SECOND  ARTICLE  OF  THE   TREATY  OF  1819. 


AL«0, 


A  MEMORIAL  OF  THE  CHEROKEE  INDIANS, 


^f,  « 


A  REPORT 

OP    THE 

COMMITTEE   OF  THE    SENATE, 
IN  RELATION  TO  THE  CLAIMS 

OF  THE 

CHEROKEE  INDIANS  AGAINST  THE  UNITED  STATES. 


WASHINGTON,  D.  C. 

KEKNBDT   ft   BROWN,    PRINTERS. 
1846. 


® 


TO    THE 

Hon.  EDWARD  HARDEN  and  BENJAMIN  H.  BREWSTER, 

Commissioners  under  the  Cherokee  Treaty  of  1835,  now  in 
session  in  tlie  Capitol  of  the  United  States. 


MEMORIAL  OF  NANCY  REED, 


A  CHEROKEE  WOMAN,  IN  FAVOR  OF  HERSELF  AND  CHILDREN, 

For  the  value  of  a  reservation  of  six  hundred  and  forty  acres  of  land, 

granted  under  the  Cherokee  treaties  of  ISll  and  1819. 

By  those  treaties,  Cherokees  who  desired  reservations  were  re- 
quired to  file  their  applications  therefor  in  the  office  of  the  Chero- 
kee Agent.  Prior  to  the  conclusion  of  these  treaties,  your  memo- 
rialist, a  native  Cherokee,  had,  agreeably  to  the  custom  of  her  tribe, 
become  the  wife  of  a  white  man  by  the  name  of  William  Reed, 
and  by  whom  she  had  children,  who,  for  her,  and  in  her  right,  on 
the  3d  day  of  August,  1819,  entered  his  name  with  the  Cherokee 
Agent,  for  a  reservation  of  six  hundred  and  forty  acres  of  land, 
which  registration  is  in  the  following  words  and  figures,  to  wit: 

(A) 

Register  of  persons  who  wish  reservations  under  the  treaty  of 

July  8th,  1819. 


DATES. 

Number  of 
reservations. 

NAMES. 

No.  in 
family. 

PLACE  OF  RESIDENCE. 

1819. 
Aug  3. 

No.  243. 

William  Reed, 
(in  right  of  his  wife.) 

(4) 

On  Tuckasege,  below 
Tennessee  Old  Town. 

At  the  time  of  registering  for  a  reservation,  she  owned  improve- 
ments, and  resided  on  the  land  reserved,  within  the  boundary 
ceded  by  the  treaty  of  1819;  and  within  the  limits  of  the  grant 
made  by  the  State  of  North  Carolina  to  the  Cherokee  Indians  in 
1783.  On  the  9th  day  of  October,  1820,  Robert  Armstrong,  the 
agent  appointed  by  the  government  of  the  United  States,  to  locate 
the  reservations  granted  under  said  treaties,  surveyed  the  reserva- 
tion of  your  memorialist.  (See  plat  and  certificate  marked  B.)  In 
tlie  latter  part  of  the  same  month,  the  State  of  North  Carolina,  in 
denial  of  their  rights,  sold,  at  public  auction,  the  reservation,  to 
her  citizens,  who  took  possession  thereof  under  the  State's  title. 

The  undersigned,  being  deserted  by  her  husband,  who  abandoned 


2 


her  and  took  another  wife  by  the  name  of  Coo-ti-ih — surrounded  by 
a  white  population,  whose  language  she  did  not  understand — sub- 
jected to  laws  which  afforded  her  no  protection  against  threatened 
personal  violence,  because  not  allowed  the  benefit  of  her  oath — 
and  finding  that  the  United  States  would  not  defend  her  title,  being 
too  poor  to  defend  it  herself,  was  compelled  to  abandon  her  reser- 
vation, and,  with  her  small  children,  remove  to  her  mother's,  in  the 
Nation;  and  the  purchasers  of  the  State's  title  have  continued  in 
possession  of  the  lands  set  apart  by  the  treaty  for  the  permanent 
home  of  your  memoiialist  and  her  children.  Under  the  13th 
article  of  the  treaty  of  1835,  before  your  immediate  predecessors, 
Messrs.  Washington  and  Mason,  the  undersigned  filed  her  claim 
for  compensation,  who  examined  it  and  ordered  it  to  be  valued  by 
the  agents  appointed  by  the  United  States  to  value  the  claims  al- 
lowed by  the  Board  of  Commissioners,  who,  as  shewn,  in  their 
accompanying  report,  marked  C,  examined  the  land  contained 
within  the  marked  lines  of  the  reservation,  reported  due  from  the 
United  States  to  your  memorialist  and  her  children,  $1905,  valued 
as  unimproved  land,  but  which  has  not  been  paid.  The  under- 
signed therefore  claims  that  the  honorable  Board  complete  the 
decree,  nunc proiu7ic,  in  her  case,  for  the  sum  allowed,  with  inter- 
est from  the  date  of  the  report,  and  that  a  certificate  issue  therefor. 

NANCY  REED, 

For  herself  and  children. 

ANNA,  (living  West.) 

NELLY,  (Qualla,  N.  C.) 

WILSON,      " 

JENNY, 

(B) 

No.  44. 

West  320  poles. 


WILLIAM  REED. 


Dwelling  House. 


East  320  poles. 


I  have  surveyed  for  William  Reed,  640  acres  of  land,  on  both 

sides  of  the   Tuckasege   river.     The   beginning,  at   a  stake,  the 

north  west  corner ;  thence  south  320  poles,  to  a  double  walnut, 

crossing  the  said  river  at  130  poles,  at  a  bunch  of  lynns  on  the 

south  side  of  said  river;   thence  east  320  poles,  to  a  small  hickory, 

crossing  the  said  river  at  140  poles;   thence  north  320  poles,  to  a 

stake  ;  thence  west  320  poles,  to  the  beginning.     Surveyed  the  9th 

day  of  October,  1820 — including  his  improvements  and  house  in 

the  centre. 

ROBERT  ARMSTRONG, 

Jonathan  Blithe,  }  iSurveyor. 

/  s    c    c 
Jehu  Shatteen.     )    "    '    ' 

(See  original,  on  file  in  your  office.) 

Valuation  of  the  reserve,  cS'c,  taken  by  William  Reed,  in  right  of  his 
wife,  J\"ancy  Reed,  a7id  children,  made  this  'HGth  January,  1845. 
This  reservation  is  situated  in  Macon  county,  North  Carolina, 
and  lies  on  both  sides  of  Tuckasege  river,  and  covers  the  farms 
now  owned  by  Jas.  Hooper,  Benjamin  Allison,  and  a  Mr.  Brown, 
the  south  boundary  line  of  said  reservation  crossing  the  river  about 
one-quarter  of  a  mile  below  the  fork  of  the  river. 

120  acres  river  bottom  lands,  worth  $10  per  acre,  $1200 

100     "      upland,  good,  "  6         "  600 

420     "      mountains,  &c.,  "  25  cts  per  acre,       105 

$1905 
N.  S.  JARRETT, 
DILLARD  LOVE. 

Franklin,  N.  C,  2Sth  January,  1845. 
Hon.  Messrs.  G.  Washington  > 
and  John  T.  Mason  :  3 

Gentlemen : — So  soon  as  Mr.  Love  returned  home  from  Ten- 
nessee, we  proceeded  to  execute  the  business,  &c.        *         * 

*  *  *  *  *  *  * 

You  will  perceive  that  all  these  reservations  are  in  that  section 
of  country  treated  for  in  the  years  '17  and  '19;  therefore  the 
claimants  have  no  right  to  improvements,  as  they  have  been  occu- 
pied by  the  whites  since  the  year  1820. 

N.  S.  JARRETT, 
DILLARD  LOVE. 
N.  B.  If  our  work  is  not  in  form,  please  correct  us. 

A  correct  extract  from  the  original. 

W.  D.  MILLER,  Secretary. 


Digitized  by  the  Internet  Archive 

in  2011  with  funding  from 

University  of  North  Carolina  at  Chapel  Hill 


http://www.archive.org/details/memorialargumentOOthom 


ARGUMENT 

IN  THE  CASE  OF  NANCY  REED  AND  HER  CHILDREN, 

Which  is  briefly  slated  in  the  preceding  memorial  and  evidence. 

This  claim  is  for  six  hundred  and  forty  acres  of  land,  granted  by 
the  United  States  to  the  claimants,  under  the  eighth  article  of  the 
Cherokee  treaty  of  IS  17,  and  the  second  article  of  the  treaty  of 
1819,  which  are  in  the  following  words: 

"Art.  8.  "And  to  each  and  every  head  of  any  Indian  family 
"residing  on  the  east  side  of  the  Mississippi  river,  on  the  lands 
"  that  are  now,  or  may  hereafter  be,  surrendered  to  the  United 
"  States,  who  may  wish  to  become  citizens  of  the  United  States, 
"  the  United  States  do  agree  to  give  a  reservation  of  six  hundred 
"and  forty  acres  of  land,  in  a  square,  to  include  their  improve- 
"  nients — which  are  to  be  as  near  the  centre  thereof  as  practicable; 
"in  which  they  will  have  a  life  estate,  with  a  reversion  in  fee 
"  simple  to  their  children,  reserving  to  the  widow  her  dower,  the 
"register  of  whose  names  is  to  be  filed  in  the  office  of  the  Chero- 
"  kee  Agent." 

Treaty  of  1819. — "Art,  2.  The  United  States  agree  to  pay,  ac- 
"  cording  to  the  stipulations  contained  in  the  treaty  of  the  Sth  July, 
"eighteen  hundred  and  seventeen,  for  all  improvements  on  lands 
"  lying  within  the  country  ceded  by  tlic  Cherokees,  which  add  real 
"  value  to  the  land,  and  do  agree  to  allow  a  reservation  of  six  hun- 
"  dred  and  forty  acres  to  each  head  of  any  Indian  family  residing 
"  within  the  ceded  territory,  those  enrolled  for  the  Arkansaw  ex- 
"  cepted,  who  choose  to  become  citizens  of  the  United  States,  in 
"  the  manner  stipulated  in  said  treaty."  (See  book  of  Indian 
treaties,  page  266.) 

All  the  requirements  of  the  provisions  quoted  were  complied 
with,  as  the  evidence  accompanying  the  memorial  fully  establishes. 

1st.  The  copy  of  the  registration  marked  A,  taken  from  the 
original  in  your  otiice,  proves  that  within  tlie  time  required,  Wm. 
Reed,  as  the  representative  of  his  Cherokee  family,  "in  their  right," 
registered  his  name  with  the  Cherokee  Agent,  which  was  "filed  in 
his  office,"  and  which,  agreeably  to  the  decisions  of  the  Supreme 
Court  of  Tennessee,  is  conclusive.  (See  Yerger's  Reports,  vol.  5, 
page  327.) 

2d.  It  also  proves  that  the  said  Nancy  Reed,  in  whose  right  the 
reservation  was  taken,  at  the  time  application  was  made,  possessed 
all  the  necessary  qualifications,  which  the  agent,  by  the  United 
States  and  Cherokee  Nation  was  made  the  exclusive  judge  of. 

3d.  The  registration  further  proves  that  the  reservation  was  lo- 
cated, as  required  by  the  2d  article  of  the  treaty  of  1819,  "within 
the  ceded  territory." 


6 

4th.  The  plat  and  certificate  of  survey  marked  B,  proves  that 
the  location  was  not  only  made,  but  that  the  United  States  surveyor, 
Robert  Armstrong,  who  was  '^appointed  to  lay  off  the  tracts  reserved 
in  North  Carolina,"  found  the  Cherokee  family  for  whom  the  re- 
servation had  been  taken,  in  possession  of  improvements  at  the 
identical  place  stated  in  the  location,  "on  Tuckasege,  below  Ten- 
nessee Old  Town,"  on  the  9th  day  of  October,  1820,  and  surveyed 
for  them,  as  authorized  to  do,  by  the  11th  article  of  the  treaty  of 
1817,  six  hundred  and  forty  acres  of  land,  "including  their  im- 
provements, and  house  in  the  centre." 

5th.  The  report  of  the  valuing  agents,  Messrs.  Jarrett  and  Love, 
proves  that  the  reservation  claimed  by  Nancy  Reed,  is  located 
within  the  cessions  made  by  the  treaties  of  1817  and' 19 — that  they 
are  entitled  to  pay  for  the  land,  but  not  for  the  improvements — be- 
cause the  improvements  have  been  made  by  the  whites,  who  have 
had  the  reservation  in  possession  since  1820.  The  said  Jarrett 
and  Love  further  report  due  from  the  United  States  to  Nancy  Reed 
and  her  children,  as  stated  in  the  memorial,  $1905, 

The  statement  on  file,  of  Col.  Preston  Starritt,  marked  D,  proves 
that  William  Reed  abandoned  his  wife  Nancy  and  her  children — 
gave  himself  up  to  dissipation,  and  died  at  Murphey,  in  1843.  His 
death  is  further  proved  by  Col.  C.  K.  Gardner,  former  Secretary  to 
the  Board,  whose  certificate  is  also  filed  in  the  case. 

The  affidavit  of  Col.  Starritt  further  proves  that  he  was  present 
at  the  Council,  when  the  Cherokee  treaty  of  July  8,  1817,  was  con- 
cluded— that  Gen.  Jackson,  in  his  presence,  informed  the  Chero- 
kees  that  he  would  draw  the  treaty  so  as  to  provide  a  reservation 
for  each  Cherokee  family  who  was  opposed  to  removal  west,  and 
who  might  wish  to  remain  and  become  citizens  of  the  United 
States — that  "  Ruth  Philips,  a  half  blood  Cherokee  woman,  sug- 
"  gested  to  Gen.  Jackson  the  propriety  of  so  wording  the  article 
"  intended  to  secure  the  reservations  so  that  the  reservee  should 
"  not  have  the  power  of  selling  the  land  during  his  life  time,  so  as 
"to  deprive  the  wife  and  children  of  the  benefit  of  the  same — al- 
"  ledging  that  during  the  time  allowed  to  register  for  those  reser- 
"  rations,  worthless  white  men  might  come  in  and  marry  Cherokee 
"  women,  to  take  reservations,  and  then  sell,  and  leave  their  fami- 
"  lies,  and  so  deprive  the  persons  intended  to  be  benefitted  by  re- 
"  servations,  of  the  same.  On  this  suggestion,  Gen.  Jackson  ex- 
"  pressed  his  determination  so  to  frame  an  article  in  the  treaty 
"  that  such  frauds  could  not  be  practised  upon  the  Lidians,  and  on 
"  the  next  day  he  read  to  Mrs.  Philips,  and  others,  the  8th  article 
"of  the  treaty  of  1817,  as  well  as  I  recollect,  in  the  very  words 
"  in  which  it  is  now  found.  *#**** 
"  Several  persons  present  suggested  changes  in  the  language  of 
"  the  article  ;  but  Gen.  Jackson  informed  them  their  wishes  would 
"  be  fully  met  in  the  article  as  it  then  stood — that  no  lawyer  with 
"  an  ounce  of  brains  in  his  head,  could  misunderstand  its  language. 
"  The  reservee  could  not  sell  or  dispose  of  the  reservation  so  as  to 
"  deprive  the  widow  and  children  of  their  several  rights.     Neither 


"could  the  wile  and  children  control  tlie  reservation  during  the 
"life  time  of  the  rescrvee." 

The  facts  set  forth  in  the  evidence  recited,  arc  further  sustained 
by  the  alliduvit  of  Susanna,  on  file,  taken  in  tlic  Cherokee  Nation 
West,  which  proves  that  she  was  accjuainted,  bclbre  her  removal 
west,  with  William  Reed  and  his  family — that  they  took  a  reserva- 
tion under  the  treaty  of  IS  17,  which  was  located  on  the  waters  of 
Little  Tennessee,  a  "short  distance  above  the  mouth  of  Scott's 
creek.  State  of  North  Carolina — that  tliey  resided  on  the  lands  re- 
served, from  before  the  conclusion  of  the  treaty,  up  to  1821,  at 
which  time  they  were  forced  to  abandon  their  reservation  by  the 
whites" — and  that  the  present  claimants,  whose  names  are  signed 
to  the  accompanying  memorial,  are  the  only  children  of  William 
and  Nancy  Reed,  and  further,  that  they  have  received  no  compen- 
sation for  their  interest  in  said  reservation. 

Loo-giah-dioguh-nahsker,  whose  affidavit  was  also  taken  west, 
proves  that  the  facts  stated  in  the  affidavit  of  Susanna,  are  true. 

Thus  was  set  apart  and  designated  by  metes  and  bounds,  six 
hundred  and  forty  acres  of  the  land  granted  to  the  Cherokee  In- 
dians, in  fee  simple,  by  the  State  of  North  Carolina,  in  the  year 
1783,  for  the  use  of  Nancy  Reed  and  her  children — in  which, 
agreeably  to  the  stipulations  of  the  treaty  under  which  the  reserva- 
tion was  granted,  Nancy  Reed  owned  a  life  estate,  which  her  hus- 
band had  the  right  to  enjoy  while  he  continued  with  her,  and  re- 
mainder in  fee  to  their  children. 

The  treaty  of  1819  was  concluded  on  the  27th  of  February,  and 
the  General  Assembly  of  the  State  of  North  Carolina,  in  the  same 
year,  passed  an  act  authorising  the  survey  and  sale  of  all  the  lands, 
in  that  State,  contained  within  the  boundary  of  the  cession.  Under 
that  act  all  the  lands  were  surveyed  and  sold,  except  two  reserva- 
tions of  six  hundred  and  forty  acres  each,  granted  in  fee  simple, 
by  the  3d  article  of  the  treaty,  to  Dick  and  the  Big  Bear.  It  is 
quite  probable  that  at  the  time  the  act  was  passed  the  Legislature 
had  no  knowledge  of  any  other  reservations  being  located  within 
the  cession,  or  they  would  also  have  been  provided  for,  and  exempted 
from  sale.  But  after  the  land  was  sold,  and  the  whites  had  become 
the  purchasers,  it  was  too  late  to  protect  the  reservees  in  the  pos- 
session of  their  lands  by  legislation. 

By  the  10th  section  of  the  act  of  1819,  certificates  were  to  issue 
to  the  purchasers  of  the  State's  title.  "And  be  it  enacted  that  the 
"said  Commissioners  shall  give  to  each  purchaser,  a  certificate, 
"describing  the  land  by  him  purchased." 

The  18th  section  of  the  act  authorized  the  purchasers  to  eject 
the  reservees,  and  all  other  persons,  from  the  lands,  in  the  name  or 
the  State.  "Be  it  enacted,  that  each  and  every  purchaser  of  any 
"section  or  sections  of  land,  having  obtained  a  certificate  from  the 
"Commissioners,  as  heretofore  provided  in  this  act,  his  heirs  and 
"assigns,  shall  have  full  power  and  authority  to  institute  an  action 
"of  ejectment,  in  the  name  of  the  State  of  North  Carolina,  against 
"any  person  or  persons,  who  may  be  in  possession  of  such  sec- 


8 

"  tion  of  land,  and  shall,  on  application,  refuse  to  deliver  up  quiet 
"and  peaceable  possession  thereof." 

Under  this  act  the  lands  granted  to  Nancy  Reed  and  her  chil- 
dren, were  surveyed  and  sold  to  Messrs.  Hooper,  Cathey,  and 
others,  in  the  fall  of  1819,  who  obtained  the  possession,  as  shown 
by  the  report  of  the  agents,  Messrs.  Jarrett  and  Love,  in  1820. 
In  most  cases,  the  survey  of  the  reservations  by  the  State — the 
sale  thereof  to  her  citizens — the  certificates  issued  in  their  favor, 
and  the  reading  of  the  law  which  authorized  suits  to  be  com- 
menced in  the  name  of  the  State,  against  the  reservees,  were  suffi- 
cient to  cause  them  to  abandon  the  land.  But  in  the  case  of  the 
present  claimants,  it  is  proved  that  they  remained  on  the  land  until 
personal  violence  was  resorted  to. 

The  United  States,  having  acquired  about  4,000,000  acres  of 
valuable  land  under  the  treaties  of  1817  and  '19,  worth  at  least 
$5,000,000,  for  which  she  was  to  pay  for  improvements  and  guar- 
anty the  titles  to  reservations  granted  under  those  treaties,  which 
was  the  only  compensation  promised  to  two-thirds  of  the  tribe 
who  remained  east,  for  their  interest  in  that  valuable  cession.  The 
United  States  having  failed  to  pay  for  the  improvements  within  the 
cession  situated  in  North  Carolina,  and  also  failed  to  defend  the 
titles  to  reservations,  as  she  was  bound  by  treaty  to  do — stipu- 
lated in  the  treaty  of  1835  to  indemnify  the  individual  Cherokees 
for  the  losses  they  had  sustained,  in  consequence  of  such  failure 
on  the  part  of  the  United  States,  to  comply  with  the  treaty  obliga- 
tions. The  10th  article  provided  payment  for  personal  losses,  in- 
cluding improvements,  "within  the  cession"  of  1819,  and  the  13th 
article  j)rovided  compensation  for  the  reservations  that  had  been 
sold,  and  which  the  reservees  had  been  forced  to  abandon,  to  be 
paid  for  as  unimproved  lands. 

"  In  order  to  make  a  final  settlement  of  all  claims  of  the  Chero- 
"  kees  for  reservations  granted  under  former  treaties,  to  any  indi- 
"  viduals  belonging  to  the  Nation,  by  the  United  States,  it  is  there- 
"  fore  hereby  stipulated  and  agreed,  and  expressly  und6rstood  by 
"  the  parties  to  this  treaty,  that  all  the  Cherokees  and  their  heirs 
"  and  descendants,  to  whom  any  reservations  have  been  made 
"  under  any  former  treaties  with  the  United  States,  &c. ;  and  which 
"  reservations  have  since  been  sold  by  the  United  States,  shall  con- 
"  stitute  a  just  claim  against  the  United  States,  and  the  original 
"  reservees,  or  their  heirs  or  descendants,  shall  be  entitled  to  receive 
"the  present  value  thereof,  as  unimproved  lands.  *  *  * 
"  And  all  such  reservees  as  were  obliged,  by  the  laws  of  the  States 
"  in  which  their  reservations  v.ere  situated,  to  abandon  the  same, 
"  or  purchase  them  from  the  States,  shall  be  deemed  to  have  a  just 
"  claim  against  the  United  States,  for  the  amount  by  them  paid  to 
"the  States,  with  interest  thereon,  for  such  reservations,  and  if 
"  obliged  to  abandon  the  same,  to  the  present  value  of  such  reser- 
"  vations,  as  unimproved  lands." 

Under  this  article  of  the  treaty,  one  of  two  things  was  necessary 
to  be  proved — either  that  the  land  was  sold,  or  that  the  Cherokees 


were  forced  to  abandon  their  interest  in  the  land  reserved.  In  the 
case  of  the  present  claimants,  it  has  been  proved  that  the  terms  of 
the  treaties  of  1S17  and  '19  were  complied  with,  as  far  as  practi- 
cable— that  the  land  was  sold — that  the  leservees  were  forcibly  dis- 
possessed— and  that  they  have  never  received  any  compensation  for 
iheir  interest  in  said  reservation.  It  is  I'urther  shown  that  William 
Reed  abandoned  his  Clicrokee  wife  and  children,  and,  in  conse- 
quence of  which,  he  ceased  to  have  any  right  with  her  to  occupy  the 
reservation,  or  to  exercise  any  ownership  over  their  property,  under 
the  laws  of  the  State  of  North  Carolina,  or  the  Cherokee  Indians. 

The  laws  of  North  Carolina,  in  a  conveyance  of  land  in  which  a 
feme  covert  is  interested,  recjuire  that  she  shall  sign  the  deed,  and 
that  she  be  privately  examined  "as  to  whether  she  doth  voluntarily 
assent  thereto."  (See  revised  statutes  of  North  Carolina,  vol.  1, 
page  227.) 

in  the  Cherokee  laws  it  is  provided  in  the  case  of  white  men 
marrying  Cherokee  women,  as  follows:  "And  in  order  to  avoid 
"imposition  on  the  part  of  any  white  man,  Resolved,  That  if  any 
"  white  man  shall  marry  a  Cherokee  woman,  the  property  of  the 
"  woman  so  married  shall  not  be  subject  to  the  disposal  of  her  hus- 
"  band  contrary  to  her  consent.  Any  white  man  so  married,  and 
"  parting  from  his  wife  without  just  provocation,  shall  forfeit  and 
"pay  to  his  wife  such  sum  or  sums  as  may  be  adjudged  to  her  by 
"  the  National  Committee  and  Council,  for  said  breach  of  marriage, 
"  and  be  deprived  of  citizenship. 

"And  he  it  also  resolved,  That  it  shall  not  be  lawful  for  any  white 
"man  to  have  more  than  one  wife:  and  it  is  also  recommended 
"that  all  others  should  also  have  but  one  wife  hereafter."  (See 
American  State  Papers,  vol.  2,  page  283.) 

While  the  first  Commissioners  under  the  Cherokee  treaty  were 
in  session,  application  was  made  to  them  by  the  children  of  re- 
servees,  for  the  value  of  their  reversionary  rights  to  reservations 
which  they  had  been  compelled  to  abandon.  The  question  of 
making  payment  was  submitted  to  the  War  Department,  and  by 
the  Secretary  of  War  it  was  referred  to  the  Attorney  General  (Mr. 
Butler,)  for  his  opinion.  On  the  14th  of  May  1838,  his  opinion 
was  given,  in  which  he  says:  "The  children  of  reservees,  under 
"  the  8th  article  of  the  ti-eaty  of  1817,  were  entitled,  by  the  ex- 
"  press  words  of  that  article,  to  reservations  in  fee  simple.  The 
"  father  having  only  a  life  estate,  the  estate  of  the  children  could 
"not  be  divested  by  any  act  of  the  ancestor;  and  if  they  have 
"  been  obliged  by  the  laws  of  the  States  to  abandon  their  rever- 
"  sionary  rights,  or  to  purchase  them  from  the  States,  they  will  be 
"entitled  to  compensation."  (See  opinions  of  the  Attorney  Gen- 
eral, page  1183.) 

Under  the  foregoing  opinion  in  favor  of  the  claims  of  the  In- 
dians being  paid,  it  may  be  asked  why  their  claims  were  not  ad- 
judicated and  settled  by  the  Commissioners?  The  following  let- 
ters of  the  Commissioners  of  Indian  Aifairs  contain  the  answer 
without  the  aid  of  comment : 

0 


10 

"War  Department, 
"Office  of  Indian  Affairs,  June  19,  1838, 

"Gentlemen:  I  am  directed  by  the  Secretary  of  War  to  in- 
struct you,  that  in  his  judgment  no  payment  whatever  should  be 
made  on  account  of  reservation  claims  under  the  treaties  of  1817 
and  1819,  either  to  the  Indian  reservees  or  their  assignees.  But 
you  are  requested  to  proceed  in  and  to  complete  the  examination 
of  these  claims,  and  to  report  each  case,  and  the  testimony  bearing 
upon  it,  in  full  to  this  Department.  If,  as  there  seems  reason  to 
apprehend,  more  extensive  powers  will  be  required  to  enable  the 
agents  of  the  Government  to  arrive  at  the  truth,  such  measures  as 
may  seem  proper  will  be  adopted. 

"Very  respectfully,  your  ob't  servant, 
(Signed)  "C.  A.  HARRIS. 

"  Messrs.  John  Kennedy, 

T.  W.  Wilson,  and 
"       James  Liddell." 

House  Rep.  Report,  Mo.  391,  March  29,  1844. 
"  On  the  17th  January,  1839,  I  informed  them  that  it  was  be- 
lieved the  commission  might  terminate  without  injury  to  any  public 
interest,  and  instructed  them  to  complete  at  once  all  their  registers, 
and  transmit  them  at  once  to  this  office.  Their  report,  which  is 
dated  5th  March  last,  was  received  on  the  16th  of  the  same  month, 
and  their  records,  documents,  and  uapers  soon  after. 

(Signed)  "  T.  HARTLEY  CRAWFORD." 

From  the  foregoing  letters  the  following  facts  are  deducible : 
1st.  That  the  head  of  the  Indian  Bureau,  for  reasons  best  known 
to  himself,  intended  to  prevent  the  claims  of  the  Indians  against 
the  United  States  for  reservations,  from  being  allowed  and  paid 
by  the  Commissioners  appointed  under  the  treaty  for  that  purpose, 
in  order  to  have  them  disposed  of  at  the  Indian  Office. 

2d.  By  the  dismission  of  the  Board,  decisions  were  prevented 
under  the  favorable  opinion  of  the  Attorney  General.  The  claim- 
ants applied  to  Congress  to  renew  the  Board.  A  resolution  was 
passed  in  favor  of  its  renewal,  which  lead  to  the  appointment  of 
Messrs.  John  H.  Eaton  and  Edward  B.  Hubley — but  with  their  ap- 
pointment instructions  issued  from  the  Indian  Office  intended  to 
control  their  action.  But  notwithstanding  the  efforts  made  to  pre- 
vent the  allowance  of  the  claims  of  the  Indians  against  the  United 
States,  a  small  number  of  the  claims  for  pre-emption  and  reserva- 
tion rights  were  allowed.  Amongst  the  number  was  one  of  the 
same  description  as  the  one  now  under  consideration,  in  favor  of 
the  children  of  Little  Deer,  in  which  the  Board  decided  that  as  the 
children  of  Little  Deer  had  not  sold  and  conveyed  their  interest  in 
the  reservation  granted  to  them  under  the  8th  article  of  the  treaty 
of  1817,  and  the  2d  article  of  the  treaty  of  1819,  they  were  en- 
titled, under  the  13th  article  of  the  treaty  of  183.5,  to  the  value  of 
their  interest  in  the  lands,  which  was  decreed  to  be  paid  to  them, 
(See  book  F,  page  63,  on  file.) 


11 

A  conflict  then  arose  between  the  Commissioners  and  the  In- 
dian OfKce,  wliich  lead  to  the  dismission  ol'  the  Board.  The 
claimants  again  made  application  to  Congress  for  the  passage 
of  a  resolution  sustaining  the  Commissioners  in  the  decisions 
they  had  made,  which  was  passed — but  the  Indian  Office  had 
influence  enough  to  prevent  its  being  signed  by  the  President, 
At  the  next  Congress,  (in  March,  1844,)  the  application  was 
renewed,  and  a  resolution  transferring  the  examination  and  pay- 
ment of  the  claims  from  the  Indian  Office  to  the  Secretary  of  the 
Treasury,  was  passed  by  an  almost  unanimous  vote  of  the  Senate, 
and  about  two-thirds  of  the  other  house,  which  received  the  ap- 
proval of  the  President.  An  appropriation  was  also  made  to 
defray  the  expenses  of  two  commissioners  for  one  year. 

The  Board  was  renewed  by  the  appointment  of  Messrs.  Wash- 
ington and  Mason,  who,  on  commencing  their  duties,  as  usual, 
received  suggestions  from  the  Indian  Office,  intended  to  have  the 
effect  of  instructions,  against  the  allowance  of  the  claims  of  the 
Indians.  They  however  made  but  few  decisions  before  they  were 
sent  on  another  duty,  to  the  Cherokee  Nation  West.  Among  the 
decisions  made  by  them,  was  one  in  the  claim  of  Cheat's  children, 
similar  to  the  present,  in  which  they  say: 

"1st.  Had  Shoat,  a  white  man,  any  title  to  the  reservation  other 
"than  that  of  an  occupation  in  right  of  his  wife,  and  at  her  suffer- 
"  ance,  and  was  he  not  a  tenant  at  her  will?  2d.  Could  Shoat,  by 
"any  act  of  his,  divest  his  wife  and  children  of  the  reservation 
"  before  or  subsequent  to  the  death  of  his  wife  ?       *     *     *     » 

"  On  the  register  he  is  stated  to  act  in  right  of  his  wife,  and  the 
"  register  shows  that  in  several  cases  the  wife  came  forward  and 
"  took  the  reservation  in  her  own  name,  although  having  a  white 
"husband.  Suppose  Isabella,  the  Cherokee  woman,  should  have 
"made  the  entry  in  her  o\vn  name,  and  the  husband  did  not 
"  appear,  where  would  have  been  his  claim  ?  It  never  would  have 
"been  dreamed  of.  Does  it  alter  the  case  that  he  should  go  to 
"  the  agent  and  say :  '  I  come  to  take  the  reservation  for  my  wife?* 
"  What  meaning  can  be  attached  to  it,  other  than  that  his  Cherokee 
"  wife  claims  under  the  treaty,  and  he  conies  to  present  the  right 
"  granted  to  her  and  children  ? 

"  The  question  finally  arises,  was  there  a  compliance,  as  far  as 
"  practicable  on  the  part  of  the  claimants,  with  the  13th  article  of 
"  the  treaty  of  1835  ?  It  is  conceded  that  the  registry  for  the  re- 
"  servation  was  complete,  with  regard  to  the  intention  :  and  it  has 
"been  settled  by  the  Supreme  Courts  of  the  States,  that  the  regis- 
"  try  was  evidence  conclusive,  and  you  could  not  go  behind  it. — 
"This  is  obvious,  because  the  Commissioners  could  not  possibly 
"enter  into  an  investigation  to  disturb  it.  *  *  *  *  The 
*' removal  of  Shoat,  witli  the  minor  cliildrcn,  after  the  death  of  their 
"mother,  could  not  affect  their  rights. 

"The  Commissioners,  taking  into  consideration  the  whole  sub- 
"ject  which  has  been  presented  and  deliberately  examined,  are  of 
"  opinion  that  the  heirs  of  Isabella  Shoat  are  entitled  to  receive 


12 

"  compensation,  &c.  The  award  to  the  heirs  of  Isabella  Shoat  (or 
"  Choat,)  is  for  compensation  for  a  reservation  of  six  hundred  and 
"  forty  acres  of  land,  at  $24  per  acre,  making  the  sum  of  $15,360." 
(See  book  F,  page  130,  on  file  in  your  otTice.) 

Under  the  rule  adopted  in  that  decision,  a  favorable  award  was 
applied  for  on  the  claim  of  Nancy  Reed  and  her  children,  now 
under  consideration.  The  case  was  taken  up,  the  evidence  and 
argument  examined,  and,  being  embraced  in  the  decision  quoted, 
the  lands  contained  in  the  reservation  were  ordered  to  be  appraised 
by  the  agents  appointed  to  ascertain  the  value  of  the  claims  allowed 
by  the  Commissioners.  As  shown  in  the  evidence  accompanying 
the  memorial,  the  lands  were  examined  and  valued  by  the  agents, 
and  a  report  then  made  of  the  sum  due  from  the  United  States  to 
the  present  claimants.  The  report,  however,  did  not  reach  the  War 
Department  until  after  the  Commissioners  had  been  sent  to  the 
Cherokee  Nation  West,  to  receive  the  claims  of  the  Indians  re- 
siding in  that  country,  from  whence  they  did  not  return  until  within 
a  short  time  before  the  year  for  which  they  had  been  appointed 
expired — and  that  was  spent  in  making  a  report  of  the  business 
transacted  west,  which  prevented  the  completion  of  the  decree  and 
issue  of  certificates  in  favor  of  the  present  claimants,  and  on  other 
claims  of  the  same  description.  Shortly  aftoi  that  commission  ex- 
pired, a  claim  for  the  value  of  a  reservation  granted  under  the  same 
treaty  as  the  one  under  consideration,  was  referred  to  the  Attorney 
General,  the  Hon.  John  Y.  Mason,  at  present  Secretary  of  the 
Navy,  for  his  opinion,  which  was  given  July  7th,  1846,  in  which  he 
says: 

"I  have  carefully  examined  the  papers  which  you  transmitted  to 
"  me  in  the  case  of  David  Taylor,  who  claims  the  assessed  value 
"  of  a  reservation  of  land,  under  the  treaty  with  the  Cherokees  of 
"  1835. 

"David  Taylor  is  a  white  man,  who  had  lawfully  married  a  Che- 
"  rokee  Indian  woman,  and  by  her  had  children.  He  had  taken  a 
"reservation  of  six  hundred  and  forty  acres  in  Highwassee  district, 
"  under  the  8th  article  of  the  treaty  of  1817.  By  its  terms  he  was 
"  entitled  to  a  life  estate,  with  the  right  of  dower  to  his  wife,  and 
"  reversion  to  their  children.  *  #  #  * 

"It  must,  however,  be  borne  in  mind  that  his  claim  is  founded  on 
"the  treaty  of  1817,  and  that  he  is  entitled  only  to  a  life  estate, 
"  with  the  right  of  dower  to  his  wife — their  children  being  entitled 
"in  fee.  Such  was  the  title  to  the  land,  and  such  is,  of  course, 
"  the  condition  of  the  right  to  indemnity."  He  however  finally 
recommended  that  the  claim  be  referred  to  the  Commissioners  ap- 
pointed under  the  17th  article  of  the  treaty,  for  their  decision. 
(See  a  certiiied  copy,  filed  in  your  office.) 

The  opinions  quoted  in  favor  of  the  Cherokee  reservees,  are 
sustained  by  a  decision  made  by  the  Supreme  Court  of  the  United 
States,  in  the  case  of  Ladiga  vs.  Roland.  In  that  case  Ladiga,  a 
Creek  Indian,  claimed  a  reservation  under  the  Creek  treaty  of  24th 
March,  1832,  and  made  application   to  the   agent  to  locate  her 


13 

lands,  in  accordance  witli  the  2d  article  of  the  treaty,  wliich  au- 
thoiized  "every  head  of  a  Creek  family  to  select  one  half  section 
"  each,  which  tracts  were  to  he  reserved  iiom  sale  for  their  use,"  &.c. 
A  residence  on  the  land  live  years  was  required  before  patents 
would  issue  to  the  Indians.  In  tlie  case  of  Ladiga,  she  made  ap- 
plication for  a  reservation  and  to  become  a  citizen,  which  were 
both  refused,  and  in  1S37  she  was  forced  to  leave  the  country  f...d 
emigrate  to  Arkansas,  by  armed  troops  in  the  employ  and  under 
the  directions  of  the  government.  The  land  occupied  by  Ladiga, 
and  which  she  claimed  as  a  reservation,  was  sold  by  the  President 
of  the  United  States,  and  a  patent  issued  by  the  Land  Office  there- 
for, in  favor  of  Roland,  against  whom  an  ejectment  was  brouiiht  in 
the  Courts  of  Alabama.  The  Supreme  Court  of  that  State  decided 
in  favor  of  Roland,  against  the  Creek  reservee.  From  that  Court 
the  case  was  carried  to  the  Supreme  Court  of  the  United  States, 
where  it  was  decided  at  the  January  term,  1844,  in  favor  of  the 
Indian.  In  the  opinion  of  the  Court,  dehvercd  by  Judge  Baldwin, 
in  that  case,  they  say:  "This  sale  (to  Roland,)  was  a  direct  infrac- 
"  tion  of  the  solemn  engagements  of  the  United  States  in  the 
"  treaty.  Though  approved  by  the  President,  if  the  plaintifl"  had 
"previously  selected  it,  according  to  the  stipulations  of  the  treaty, 
"in  such  case  the  sale  was  a  nullity — for  the  want  of  any  power 
"in  the  treaty  to  make  it.  The  President  could  give  no  such 
"  power,  or  authorize  the  officers  of  the  Land  Office  to  issue  patents 
"  on  such  sales,  by  reason  of  their  collision  with  the  treaty.  The 
"  only  remaining  inquiry  is  into  the  plaintiff's  title.  No  other  ob- 
"  jection  has  been  made  to  it  than  the  refusal  of  tlie  locating  agent, 
"  or  his  deputy,  to  recognize  her  right  under  the  treaty,  or  to  set 
"apart  the  land  so  located  by  her,  opposite  her  name  on  the  roll, 
"  as  in  other  cases,  solely  for  the  reason  he  assigned.  We  cannot 
"  seriously  discuss  the  question  whether  a  grand-mother  and  grand- 
"  children  compose  a  family,  in  the  meaning  of  that  word  in  the 
"treaty — it  must  shock  the  common  sense  of  all  mankind  even  to 
"  doubt  it.  It  is  incompatible  with  the  good  faith  and  honor  of  the 
"  United  States,  and  as  repugnant  to  the  Indian  character,  to  sup- 
"  pose  that  either  party  to  the  treaty  could  contemplate  such  a  con- 
"struction  to  their  solemn  compact,  as  to  exclude  such  persons 
"  from  its  protection,  and  authorize  any  officer  to  force  her  from 
"  her  home  into  the  wilds  of  the  far  west.  Such  an  exercise  of 
"  power  is  not  warranted  by  the  compact,  and  the  pretext  on  which 
"  it  was  exercised,  is  wholly  unsanctioned  by  any  principle  of  law 
"  or  justice.  Having  a  right,  by  the  treaty,  to  select  the  land  of 
"  her  residence — having  selected  it,  and  been  driven  from  it  by 
"  lawless  forces,  her  title  remains  unimpaired.      *  *  * 

"  She  has  never  abandoned  her  claim,  but  has  insisted  on  her  lights 
"  under  the  treaty. 

"In  our  opinion,  the  plaintiff  not  only  has  a  right  to  the  land  in 
"  question,  under  the  treaty,  but  one  which  it  protects  and  guar- 
"  anties  against  all  the  acts  which  have  been  done  to  her  prejudice; 
"and  we  are  much  gratified  to  find  in  the  able  and  sound  opinion 


14 

"of  the  Supreme  Court  of  Tennessee,  on  the  Cherokee  treaty  of 
"  1819,  and  the  Supreme  Court  of  Alabama  on  this  treaty,  a  train 
"  of  reasonings  and  conclusions  which  we  very  much  approve  of, 

"  and  are  perfectly  in  accordance  with  our  opinion  in  this  case. 

"The  cases  are  reported  in  2d  Yeraer,  144,  432;  5th  Yerger,  323; 
"5th  Porter,  Alabama  Rep.  330,  427. 

"  The  judgment  of  the  Supreme  Court  of  Alabama  is  therefore 
"reversed."     (See  Howard's  Reports,  vol.  2,  page  588.) 

In  the  foregoing  decision,  a  fair  sample  is  furnished  of  the  treat- 
ment Indians  receive  from  the  different  departments  of  the  govern- 
ment. This  poor  Creek  Indian  made  application  to  her  Great 
Father — the  President — to  reserve  her  lands  from  sale,  and  afford 
her  protection  in  accordance  with  the  treaty  provisions;  but  it  is 
quite  probable  her  application  did  not  find  its  way  beyond  the  In- 
dian Office.  There,  policy  in  favor  of  removal  being  stronger  than 
the  treaty  stipulation,  the  pretext  was  no  doubt  sustained,  and  the 
old  Indian,  whose  grey  hairs  would  have  protected  her  from  op- 
pression among  savages,  was  driven  from  her  home  at  the  point  of 
the  bayonet,  into  the  distant  wilds  of  the  west.  But  when  appli- 
cation was  made  to  the  other  branch  of  the  government — the  Su- 
preme Court — the  treaty,  and  not  policy,  is  regarded  as  the  supreme 
law  of  the  land,  and  a  construction  consistent  with  the  intention 
of  the  parties,  and  with  equity  and  justice,  is  established.  And,  as 
if  for  the  purpose  of  guarding  the  Executive  and  Indian  Office 
against  establishing  wrong  constructions  on  the  Cherokee  treaty  of 
1819,  in  the  conclusion  of  their  opinion  they  apyrove  the  decisions 
made  by  the  Supreme  Court  of  Tennessee,  in  favor  of  the  reservees 
under  that  treaty. 

By  the  foregoing  evidence  and  argument,  the  following  facts  are 
believed  to  be  established: 

1st.  That  the  reservation  of  Nancy  Reed  and  her  children  was 
well  taken,  and  that  "they  have  complied  with  the  terms  on  which 
it  was  granted,  as  far  as  practicable." 

2d.  That  the  land  was  sold  by  the  State  of  North  Carolina,  and 
the  purchasers  were  authorized,  under  an  act  of  the  Legislature,  to 
eject  the  reservees  from  it,  in  the  name  of  the  State ;  and  that 
Nancy  Reed  and  her  children  "were  forced  to  abandon  their  reser- 
vation, under  the  laws  of  the  State." 

3d.  That  William  Reed  deserted  his  family,  and  thereby  ceased 
to  have  any  rights,  in  common  with  them,  to  the  lands  reserved. 

4th.  That  the  whites  who  became  the  purchasers  of  the  reserva- 
tion, have  been  in  possession  of  it  since  1820  or  '21. 

5th.  That  Nancy  Reed  and  her  children  have  never  "sold,  con- 
veyed, or  been  paid  for  said  reservation,  or  any  part  thereof" 

6th.  That  under  the  13th  article  of  the  treaty,  they  were  entitled 
to  be  paid  the  value  of  the  reservation  as  unimproved  lands. 

7th.  That  the  claim  has  been  examined  by  a  board  of  Commis- 
sioners, passed  on  favorably,  and  the  land  valued  by  agents  ap- 
pointed by  the  United  States,  to  value  the  claims  allowed  by  the 
Commissioners. 


15 

8th.  That  the  favorable  opinion  thus  given,  is  sustained  by  a  de- 
cision made  by  Messrs.  Eaton  and  Hubley,  in  the  case  oi'  Little 
Deer's  children,  and  by  a  decision  of  Messrs.  Washington  and 
Mason,  in  the  case  of  Cheat's  children. 

9th.  That  it  has  been  further  sustained  by  the  opinions  of  two 
Attorneys  General,  Messrs.  Butler  and  Mason. 

10th.  That  the  rule  of  construction  adopted  in  the  opinions  and 
decisions  referred  to,  and  the  rights  of  the  Cherokee  reservees  are 
further  supported  by  a  decision  ol'the  Supreme  Court  of  tlie  United 
States,  in  the  case  of  Ladiga,  a  Creek  reservee. 

In  conclusion,  I  have  this  apology  to  offer  for  submitting  a  long 
argument  in  so  plain  a  case.  It  is  intended  to  apply  to  all  other 
claims  of  the  children  of  reservees.  And,  as  the  treaty  of  1S35 
has  made  it  the  duty  of  the  United  States,  as  admitted  in  the  treaty 
of  1846,  to  pay  for  all  the  reservations,  "as  a  just  fulfilment  of 
former  treaties,"  the  claimants,  as  well  as  the  citizens  settled  on 
those  reservations,  in  the  States  of  Georgia,  Alabama,  Tennessee, 
and  North  Carolina,  are  anxious  the  United  States  should  fulfil  the 
obligation  imposed  by  the  treaty,  and  satisfy  those  claims,  thereby 
secure  to  the  Indian  his  dues,  and  to  the  white  man  his  home. 

The  few  claimants  east,  would,  no  doubt,  be  disinclined  to  com- 
mence suits  against  their  white  neighbors,  even  if  the  Board  should 
refuse  to  pay  ibr  their  reservations,  because  of  the  friendly  relations 
which  exist  between  them.  At  the  same  time  it  must  be  borne  in 
mind,  that  the  principal  part  of  the  claimants  reside  in  the  Chero- 
kee Nation  West,  where  a  diflerent  relation  exists  between  those 
Indians  and  the  citizens  of  the  States — and  that  already  a  suit  has 
been  commenced  in  the  names  of  Miller's  children,  for  a  reserva- 
tion granted  to  them  under  the  Cherokee  treaty  of  1817,  located 
in  Tennessee,  which  has  been  sent  up  from  the  Supreme  Court  of 
that  State,  for  a  final  decision  by  the  Supreme  Court  of  the  United 
States,  with  a  view  of  settling  the  question  on  reservations  under 
the  Cherokee  treaties  of  1817  and  '19.  If  their  decision  should 
be  in  favor  of  the  title  of  the  children,  to  whom  was  granted  the 
remainder  in  fee,  will  it  not  I'ollow,  as  a  consequence,  that  similar 
suits  will  at  once  be  instituted  for  all  the  reservations  not  paid  for 
by  the  Commissioners?  In  North  Carolina  upwards  of  eighty  re- 
servations were  located,  taken  under  the  8th  article  of  the  treaty  of 
1817,  as  continued  and  modified  by  the  2d  article  of  the  treaty  of 
1819.  Of  that  number,  in  ten  years,  since  the  conclusion  of  the 
treaty  providing  for  the  adjustment  and  settlement  of  those  claims, 
only  four,  located  within  the  limits  of  North  Carolina,  have  been 
settled.  If  suits  should  be  brought  for  those  remaining  unsettled,  it 
will  be  found  that  nearly  every' valuable  tract  of  land  in  the  county 
of  Macon,  and  a  considerable  number  in  the  county  of  Haywood, 
will  be  coveied  by  reservations,  besides  those  in  other  States;  and 
on  some  of  them  fiourishing  villages  have  been  built.  And  if  the 
Indians  recover  the  lands,  they  will  not  only  be  entitled  to  the 
value  of  the  land  without  improvements,  as  they  are  now  claiming 
under  the  treaty,  but  they  will  be  entitled  lo  the  land  with  the  im- 


16 

provemciits  upon  it,  and  for  the  rents  and  profits  from  the  time 
they  were  dispossessed. 

It  is,  I  believe,  admitted  by  this  honorable  Board,  as  well  as  their 
predecessors,  that  if  the  claims  for  reservations  are  not  paid,  the 
Indians  can  recover  the  land.  If  so,  it  may  well  be  asked  why 
should  the  United  States  withhold  payment?  The  13th  article  pro- 
vides that  all  the  reservations  sold  or  abandoned,  should  be  paid 
for  as  unimproved  lands;  and  the  3d  supplemental  article  express- 
ly provides  for  the  adjudication  of  all  just  claims  on  the  United 
States,  which  may  not  have  been  embraced  in  the  former  articles 
of  the  treaty.  Under  these  provisions  the  principal  questions  to 
be  determined  would  seem  to  be:  Did  the  Indians  comply  with  the 
stipulations  of  the  treaties,  as  far  as  practicable?  Was  the  land 
sold  by  the  United  States,  or  by  the  States;  or  have  the  reservees 
been  forced  to  abandon  them?  If  so,  the  United  States,  having 
guarantied  the  title  to  the  Indians  for  a  valuable  consideration  re- 
ceived, is,  in  good  taith,  bound  to  make  good  that  guaranty,  by  in- 
demnifying those  deprived  of  the  land  under  the  laws  of  the  States. 

I  beg  leave,  therefore,  to  ask  for  the  Indians,  as  well  as  the 
whites  who  are  now  in  the  possession  of  those  reservations,  who 
have  bought  and  paid  for  them,  and  made  valuable  improvements 
on  the  lands,  who  are  most  to  be  injured  if  you  should  decide 
against  the  payment  of  the  claims  for  reservations,  that  patient  ex- 
amination which  the  importance  of  the  subject  demands. 
Respectfully  submitted. 

"WM.  H.  THOMAS, 
Attorney  for  the  Eastern  Cherokees. 

March  18,  1847. 


TO  THE  SENATE  OF  THE  UNITED  STATES. 

Memorial  in  favor  of  the  Cherokee  Indians  who  have  become  citizens  of  the  States 
of  Georgia,  Alabama,  Tennessee  and  JVorth  Carolina. 

The  undersigned  respectfully  represents,  that  on  the  8th  day  of  August,  1846, 
a  treaty  was  concluded  between  the  United  States  and  the  Cherokee  Nation 
^Vcst,  in  which  the  Eastern  Cherokees,  though  not  parties  to  it,  are  interested, 
lie  tlieretore,  for  them,  begs  leave  to  submit  a  short  statement  of  facts  explana- 
tory of  the  questions  referred  to  your  honorable  body  for  decision,  by  the  11th 
article  of  said  treaty,  which  is  in  the  following  words  : 

"  Whereas  the  Cherokee  delegations  contend  that  the  amount  expended. for 
'  the  one  year's  subsistence,  after  their  arrival  in  the  west,  of  the  Eastei-n  Che- 
'  rokees,  is  not  properly  chargeable  to  the  treaty  fund ;  it  is  hereby  agreed  that 
'  that  question  shall  be  submitted  to  the  Senate  of  the  United  States  for  its  de- 
'  vision,  which  shall  decide  whether  the  subsistence  shall  be  borne  by  the  United 
'  Slates  or  the  Cherokee  funds ;  and  if  by  the  Cherokees,  then  to  say  whether 
'  the  subsistence  shall  be  charged  at  a  greater  rate  than  thirty-three,  thirty-three 
'  and  one  hundredths  dollars  per  head;  and  also  the  question  xchether  the  Cherokee 
'  A  at  ion  shall  be  allowed  interest  on  whatever  sum  may  be  found  due  to  the  JSi^ation, 
'  and  from  what  date,  and  at  what  rate  per  annum?" 

Under  the  foregoing  article,  five  questions  are  referred  to  the  Senate.  1st. 
"Whether  the  amount  expended  for  one  year' s  subsistence,  is  chargeable  to  the 
treaty  fund,"  or  to  the  United  States? 

By  the  8th  article  of  the  Cherokee  treaty  of  IS'28,  made  with  the  Cherokee 
Nation  West,  the  expense  of  removing  and  subsisting  the  portion  of  the  tribe 
then  east,  was  to  be  borne  by  the  United  States.  "The  Cherokee  J\'ation  west 
of  the  Mississippi,  having  by  this  agreement,  secured  a  large  extent  of  unem- 
barrassed country,  &c."  It  is  further  agreed  on  the  part  of  the  United  States, 
that  to  each  head  of  a  Cherokee  family  now  residing  within  the  chartered  limits 
of  Georgia,  or  either  of  the  other  States  east  of  the  Mississippi,  who  may  desire 
to  remove  west,  shall  be  given,  on  enrolling  himself  for  emigration,  a  good  rifle 
gun,  &c.,  the  cost  of  the  emigration  to  be  borne  by  the  United  States — "and 
provisions  for  twelve  months  after  their  arrival  at  the  Agency.'  The  obligation 
imposed  on  the  United  States  by  the  article  quoted,  to  remove  and  subsist  the 
Cherokees,  was  continued  by  the  Stli  article  of  the  treaty  of  1835.  '^The  United 
States  also  agree  and  stipulate  to  remove  the  Cherokees  to  their  new  homes,  and 
to  subsist  them  one  year  after  their  arrival  there."  Shortly  after  the  ratification 
of  the  last  named  treaty,  a  question  arose  as  to  the  allowance  of  claims  for 
commutation  of  the  year's  subsistence,  which  was  referred  for  decision  to  the 
"War  Department;  and  the  decision  was  communicated  by  the  Hon.  C.  A. 
Harris,  Commissioner  of  Indian  Affairs,  to  B.  F.  Curry,  Superintendent  of 
Cherokee  removals,  in  his  letter  under  date  of  November  ISth,  1836,  in  which 
he  says:  "  I  acknowledge  the  receipt  of  your  letter  of  the  26th  of  October  last, 
'  and  in  reply  have  to  observe,  that  I  have  taken  the  decision  of  the  Secretary 
'  War,  ad  interi?n,  upon  the  claim  of  the  Cherokees  for  subsistence,  at  $33  33 
'each.  The  Secretary  decides  that  the  commutation  may  be  paid  at  the  rate 
'  above  stated ;  but  at  the  same  time  declares  that  the  allowance  is  made  under  the 
'  treaty  of  1828,  and  not  in  pursuance  of  any  stipulations  of  the  final  treaty  of 
'  1835."    (See  Senate  .Doc.  No.  120,  page  200,  second  session,  28th  Congress.) 

2d.  If  the  first  question  be  decided  in  favor  of  the  United  States,  against  the 
Cherokees,  then  "whether  the  subsistence  shall  be  charged  at  a  greater  rate  than 
$33  33  1-3  per  head?"  The  8th  article  of  the  treaty  of  1835,  after  providing 
lliat  the  United  States  shall  remove  and  subsist  the  Cherokees  one  year,  further 


provides  :  "  Such  persons  and  families  as,  in  the  opinion  of  the  emigrnting  agent, 
'  are  capable  of  removing  and  subsisting  themselves,  shall  be  permitted  to  do  so, 
'  and  they  shall  be  allowed  in  full  for  all  claims  for  the  same,  tvienty  dollars  for 
'each  member  of  their  families  ;  and  in  lieu  of  their  one  year's  rations,  they  shall 
'be  paid  the  sum  of  thirty-three  dollars  and  thirty-three  cents  if  they  prefer  it.'' 

By  the  interpretation  placed  on  the  article  quoted,  and  the  12th  article  of  the 
same  treaty,  individuals  and  families  of  the  same  tribe  who  were  capable  of  re- 
moving and  subsisting  themselves,  or  to  become  citizens  of  the  states,  were 
allowed  to  commute  their  right  to  those  benefits  in  kind,  for  twenty  dollars  for 
removal,  and  thirty-three  dollars  and  thirty-three  and  one-third  cents  for  the 
year's  subsistence,  which  being  regarded  by  the  United  States  as  full  compen- 
sation to  the  Indians  for  all  claims  for  removing  and  subsisting  themselves, 
would  seem  to  be,  in  like  manner,  full  compensation  to  the  United  States  for 
the  same  objects. 

3d.  "Whether  the  Cherokee  Jfation  shall  be  allowed  interest  on  whatever  sum 
may  be  found  to  be  dueV  By  the  treaty  of  1835,  the  United  States  were  made 
the  trustee  of  the  funds  to  be  paid  to  the  Cherokees  under  it ;  and  in  that  ca- 
pacity were  to  pay  each  Cherokee  the  amount  due  to  him  under  the  treaty.  In- 
stead of  applying  the  trust  fund  created  by  the  acts  of  July  2d,  1836,  and  June 
12th,  1838,  to  the  payment  of  individual  Cherokees,  it  is  admitted  in  the  treaty 
of  August  1846,  that  the  United  States  converted  the  money  to  their  own  use. 
A  private  individual  under  the  same  circumstances,  in  a  court  of  equity,  would 
be  required  to  pay  interest. 

4th.  If  the  3d  question  be  decided  in  favor  of  the  Indians,  "at  vAat  date"  shall 
the  inte?-est  commence?  The  12th  article  of  the  Cherokee  treaty  of  1835,  pro- 
vides that  the  Cherokees  who  remained  and  became  citizens  of  the  states  should 
be  paid  all  their  dues  under  the  treaty  as  soon  as  an  appropriation  was  made 
therefor.  "  Those  individuals  and  families  of  the  Cherokee  Motion  that  are  averse 
'  to  a  removal  to  the  Cherokee  country  west  of  the  Mississippi,  and  are  desirous 
'  to  become  citizens  of  the  states  where  they  reside,  &c.,  shall  be  entitled  to  re- 
'  ceive  their  due  portion  of  all  the  personal  benefits  accruing  under  this  treaty, 
'  for  their  claims,  improvements,  and  per  capita,  as  soon  as  an  appropriation  is 
'  made  for  this  treaty."    The  appropriation  for  this  treaty  was  made  July  2d,  1836. 

5th.  What  rate  per  annum  shall  be  paid  to  the  Indians  for  the  trust  fund  con- 
verted to  the  use  of  the  United  States?  The  lowest  rate  of  legal  interest  in  the 
United  States  is  six  per  cent.  The  United  States  have  been  and  are  now  paying 
that  rate  for  the  use  of  money. 

The  undersigned  has  confined  himself  to  a  statement  of  facts,  without  at- 
tempting to  elucidate  them  by  argument.  And,  in  conclusion,  he  begs  leave 
to  ask  for  the  Cherokees  east,  who  have  ceased  to  be  members  of  their  own 
nation,  and  become  a  part  of  the  American  people,  your  favorable  consideration. 

WM.  H.  THOMAS, 
Agent  for  the  Eastern  Cherokees. 

December  29th,  1845. 


29th  Congress,  [SENATE.]  [  157  1 


2d  Session.. 


IN  SENATE  OF  THE  UNITED  STATES. 


February  19,  1S4T. 

SubiniUed,  and  ordered  to  be  prin'ed. 


Mr.  Jarnagin  made  the  following 

REPORT : 

The  Committee  on  Indian  Affairs,  to  whom  was  referred  the  memorial 
of  David  Vann  and  William  P.  Ross,  dele2:ates  from  the  Cherokee  nation, 
respectfully  report  the  following  facts,  which  will  enable  the  Senate  to 
decide  the  various  questions  upon  which  the  Cherokee  delegation  and 
the  commissioners  appointed  to  treat  with  them  in  July  last  could  not 
agree,  and  which,  by  the  terms  of  the  treaty  of  the  6th  of  August,  1S46, 
were  to  be  submitted  to  the  arbitrament  of  the  Senate,  whose  award  was 
to  constitute  a  part  of  that  treaty.  The  peace  and  happiness  of  the  Chero- 
kee nation  so  imperiously  demanded  the  immediate  adoption  of  that  treaty, 
that  the  Cherokee  delegation  could  not  refuse  their  assent  to  it — leaving 
certain  questions  to  the  arbitrament  of  the  Senate.  Peace  and  quiet  have 
been  restored  in  the  Cherokee  country,  and  it  now  only  remains  for  the 
Senate  to  decide  the  questions  which  have  been  submitted  to  it,  that  tlie 
account  may  be  finally  made  up  and  closed. 

The  first  of  these  questions  is,  whether,  by  the  treaty  of  29th  Decem- 
ber, 1S35,  it  was  the  understanding  of  the  parlies  that  the  various  sums 
since  charged  to  the  five  million  fund  given  by  that  treaty  have  been 
properly  so  charged.  On  the  28th  February,  1S35,  a  delegation  from  the 
Cherokee  nation  proposed  to  submit  the  terms  of  a  treaty  to  the  arbitra- 
ment of  the  Senate  of  the  United  States.  In  considering  the  subject, 
the  Senate  only  looked  to  the  value  of  the  lands,  and  have  so  said  in 
language  the  most  explicit.  The  preamble  to  that  treaty  recites  the  sub- 
mission which  had  been  made  to  the  Senate,  and  then  adds  :  <<  and 
whereas,  on  such  submission,  the  Senate  advised  that  a  sum  not  exceed- 
ing five  millions  of  dollars  be  paid  to  the  Cherokee  Indians  for  their /o/vo'^^ 
and  possessions  east  of  the  Mississippi  river."  The  sole  consideration 
stated  for  the  five  millions  was  "their  lands  and  possessions  east  of  the 
Mississippi  river."  If  any  thing  else  had  been  intended  to  be  included, 
such  as  claims  for  spoliations,  subsistence,  removal,  &c.,  why  was  it  not 
so  stated  in  the  treaty?  It  is  enough  to  show  that  it  is  not  so  stated  ;  but 
it  is  manifest  that  such  was  not  the  intention  of  the  parties ;  for  the 
amount  of  these  spoliations,  the  expense  of  removal,  ifcc,  were  not  then 
known,  and  could  not  have  been  ascertained  ;  and  besides,  there  were  sub- 
sisting claims  upon  the  government  of  the  United  States,  which  they  were 
bound  by  treaty  to  have  paid.  Not  to  pay  them,  or  to  pay  them  out  of 
the  fuuds  of  the  Cherokees  which  had  been  ftxed  by  the  Senate  as  th» 
\Tilue  of  their  lands,  wa^  precisely  ijie  same  thing. 

Eiiclii'e  vt  liei.^s.,  print. 


[  157  ]  2 

The  United  States  were  bound  by  the  treaty  of  1 828  to  pay  the  expenses 
of  the  removal  of  all  the  Cherokees.  This  obligation  was  not  released  by 
the  purchase  of  their  lands  at  their  appraised  value.  Would  such  a  thing 
be  pretended  in  a  similar  transaction  between  individuals?  If  all  the 
Cherokees  had  removed  before  they  ceded  their  lands,  the  United  States 
were  bound  to  pay  the  cost  of  removal.  If  the  United  States  afterwards 
bought  the  lands  of  the  Cherokees,  they  were  bound  to  pay  the  price  at 
which  they  were  appraised.  The  first  article  of  the  treaty  recites  that 
"  tlie  Cherokee  nation  hereby  cede  to  the  United  States  their  lands  east 
of  the  Mississippi  river,  and  hereby  release  their  claims  for  spoliations  of 
every  kind,  for  and  in  consideration  of  $5,000,000$  but  as  a  question  has 
arisen  between  the  commissioners  and  the  Cherokee  people  whether  the 
Senate,  when  they  advised  that  a  sum  not  exceeding  $5,000,000  be  paid 
the  Cherokee  Indians  for  their  lands  and  possessions  east  of  the  Missis- 
sippi river,  had  included  or  made  any  allowance  for  claims  for  spoliations, 
it  is  therefore  agreed  on  the  part  of  the  United  States  that  this  question 
shall  be  submitted  to  the  Senate  for  their  consideration  and  decision  ;  and 
if  no  allowance  was  made  for  spoliations,  that  then  an  additional  sum  of 
$'300,000  be  allowed  for  the  same."  It  will  be  seen  by  the  above  that 
subsistence  and  removal  were  not  included  in  the  above  article,  nor  was 
Einy  question  as  to  either  of  those  items  then  even  thought  of.  But  the 
only  thing  pretended  to  be  charged  upon  this  fund  was  spoliations.  The 
Senate  decided  that  the  sum  of  $5,000,000  was  given  for  the  lands  alone, 
and  a  supplemental  article  giving  $600,000  was  added  to  pay  for  spolia- 
tions and  removal,  but  still  not  including  subsistence.  That  sum  it  was 
then  thought  would  be  sufficient  to  cover  these  charges  ;  but  it  was  found 
that  it  was  not;  and  the  United  States,  feeling  that  they  were  bound  to 
pay  these  charges,  again,  in  1838,  appropriated  $1^047,01)0  for  these  objects. 
The  Cherokee  nation  does  not  contend  that  the  treaty  fund  shall  be  re- 
lieved from  the  charge  for  spoliations,  but  only  from  the  cost  of  one  year's 
subsistence  and  removal  to  the  west.  Both  of  these  sums,  which  were 
added  by  Congress,  were  found  inadequate  to  pay  these  various  charges, 
and  the  fund  of  five  millions  has  been  used  for  that  purpose  and  others, 
to  its  entire  exhaustion,  or  nearly  so.  They  ask  to  be  relieved  from  the 
charges  for  removal  and  subsistence.  It  is  very  clear  that  not  until  after 
the  exhaustion  of  the  $600,000  and  the  $1,047,000  did  the  officers  of  the 
government  of  the  United  States  ever  once  think  that  the  $5,000,000  was 
liable  for  these  charges.  Not  one  dollar  of  that  fund  was  ever  so  used 
until  then.  The  following  communication  from  the  then  Secretary  of 
War  shows  that  his  understanding  was,  that  this  fund  was  not  liable  for 
these  charges,  or  else  he  would  not  have  made  the  requisition  for  the  sum 
of  $1,080,000  ;  that  is  to  say,  $1,047,000  for  these  purposes,  and  $33,000 
for  annuities.  Congress  made  the  appropriation  at  once,  which  shows 
that  the  opinion  of  that  body  was  the  same.  If  the  five  million  fund  was 
liable  for  these  charges,  how  could  the  Secretary  have  said  that  there  were 
no  funds  to  meet  them,  when  there  was  the  five  million  fund?  Why 
did  Congress  make  this  additional  appropriation  ?  The  only  answer  which 
can  be  given  is,  that  it  was  considered  just  under  the  treaty,  as  the  Senate 
had  said,  when  the  subject  was  a  second  time  referred  to  that  body  for  its 
decision  on  this  specific  question,  that  the  treaty  fund  of  five  millions 
watj  not  liable  to  be  charged  with  these  expenses. 


3  [157 

[Doc.  No.  401,  2d  session  25th  Congress.] 

Department  of  War,  May  25,  1838. 

Sir:  In  compliance  with  the  resolutionof  the  House  of  Representatives 
of  the  23d  instant,  requiring  a  statement  of  the  amount  that  will  be  re- 
quired for  the  additional  allowance  proposed  to  be  made  to  the  Cherokees, 
I  have  the  honor  to  present  the  following  estimate : 

The  payment  of  the  expenses  of  removing  the  remaining 

Cherokees,  estimated  at  15,84U,  at  $30  per  head  -      $475,200  00 

Amount  applicable  to  that  purpose  ...  39,300  00 

Balance  to  be  provided  for  -  -  -  -        435,900  00 

If  it  should  be  deemed  proper  to  make  any  fnrther  provi- 
sion for  the  payment  of  the  subsislence  of  the  emi- 
grants for  one  year  after  their  arrival  west,  it  will  ^ 
require,  estimating  the  whole  number  at  18,335,  there- 
by nickiding  those  who  have  already  emigrated,  and 
allowing  the  amount  stipulated,  viz:  $33  33  a  head  -  611,105  55 
Add  for  contingencies,  under  estimates  both  of  number 

to  be  removed  and  of  expenses  to  be  incurred  -  -  100,000  00 

The  amount  of  annuities,  payment  of  which  is  asked  for 

by  the  deputation,  will  be         -  -  -  -  33,330  00 


1,180,335  55 


Very  respectfully,  your  most  obedient  servant, 

J.  R.  POINSETT. 

Hon.  J.  K.  Polk, 

Speaker  House  of  Representatives. 

But  this  is  not  all.  The  question  was  submitted  to  the  Secretary  of 
War  for  his  decision  on  this  specific  point,  and  he  decided  that  these 
charges  of  subsistence  and  removal  were  not  chargeable  to  the  treaty  fund, 
but  to  the  government  of  the  United  States,  under  the  treaty  of  1828. 

Shortly  after  the  ratification  of  the  treaty  of  1835,  a  question  arose  as  to 
the  allowance  of  claims  for  commutation  of  the  year's  subsistence,  which 
was  referred  for  decision  to  the  War  Department ;  and  the  decision  was 
communicated  by  the  Hon.  C.  A.  Harris,  Commissioner  of  Indian  Affairs, 
to  B.  F.  Curry,  superintendent  of  Cherokee  removals,  in  his  letter  under 
date  of  November  i8th,  1836,  in  which  he  says  :  "I  acknowledge  the  re- 
ceipt of  your  letter  of  the  26th  of  October  last,  and  in  reply  have  to  ob- 
serve, that  I  have  taken  the  decision  of  the  Secretary  of  War  ad  interim 
upon  the  claim  of  the  Cherokees  for  subsistence  at  §33  33  each.  The 
Secretary  decides  that  the  commutation  may  be  paid  at  the  rate  above 
stated  ;  but  at  the  same  time  declares  that  the  allowance  is  made  under  the 
trcafy  of  1828,  and  not  in  pursuance  of  any  slipnlntions  of  {he  Ji>ial  treaty 
of  1835."    (See  Senate  Doc.  No.  120,  page  200, 2d  session  23th*Congress) 

""IMie  treaty  fund  was  never  touched,  nor  was  it  ever  pretended  that  it 
was  liable  for  these  charges,  until  after  the  appropriations  made  for  these 
specific  objects  had  been  exhausted.  Now  it  seems  very  clear  that  if  the 
government  of  the  United  States  was  liable  for  these  charges  when  the 


[  157  ]  4 

additional  sum  of  $600,000  was  given,  and  then  again  when  the  further  sum 
of  $1,047,000  was  given,  it  is  equally  liable  nov/  for  whatever  may 
remain  of  these  charges,  after  both  of  these  sums  have  been  exhausted. 
The  magnitude  of  the  obligation  cannot  be  held  to  release  the  party  from 
its  fulfilment. 

The  thirteenth  article  of  the  treaty  which  stipulates,  on  the  part  of  the 
United  States,  to  pay  for  reservations  of  which  the  Indians  had  been  de- 
prived, closes  with  the  following  words  :  "  It  is  expressly  understood  that 
the  amount  to  be  allowed  for  reservations  under  this  article  shall  not  be 
deducted  out  of  the  consideration  money  allowed  the  Cherokees  for  their 
clahns  for  spoliations^  and  the  cession  of  their  lands ;  but  the  same  is  to 
be  paid  for  independently  by  the  United  States,  as  it  is  only  a  just  fulfil- 
ment of  former  treaty  stipulations."  Here,  again,  the  consideration  given 
is  stated.  And  what  is  that  consideration  ?  Why,  claims  for  spoliations 
and  the  cession  of  their  lands — not  a  word  said  about  any  thing  else  •,  and 
this  because  "  it  is  only  a  just  fulfilment  of  former  treaty  stipulations," 
Does  not  this  apply  equally  to  the  payment  for  removal  and  subsistence? 
The  government  was  bound  to  do  this  by  the  treaty  of  1828,  and  again 
by  the  Sth  article  of  the  treaty  of  1835  : 

"  Art.  8,  The  United  States  also  agree  and  stipulate  to  remove  the 
Cherokees  to  their  new  homes  in  the  west,  and  to  subsist  them  one  year 
af  er  their  arrival  there,  &c.,  &c.  Such  persons  and  families  as,  in  the 
opinion  of  the  eiTiigrating  agent,  are  capable  of  removing  and  subsisting 
themselves,  shall  be  permitted  to  do  so,  and  shall  be  allowed,  in  full  for  all 
claims  for  the  same,  $20  for  each  member  of  their  family,  and  in  lieu  of 
their  one  year's  rations  they  shall  be  paid  the  sum  of  $33  33,  if  they 
prefer  it." 

What  does  the  word  also  in  the  above  article  mean,  unless  it  be  that 
this  removal  and  subsistence  shall  also  be  paid  in  addition  to  the  price 
given  for  their  lands  ?  Is  there  any  other  imaginable  meaning  that  can 
be  given  to  it?  the  more  clearly  so,  as  the  United  States  were  bound  by 
the  subsisting  and  unabrogated  treaty  of  1828  to  pay  these  charges.  But 
if  neither  the  cost  of  removal  nor  subsistence  is  to  be  paid  by  the  United 
States,  it  is  too  clear  to  admit  of  contradiction  that  there  is  neither  justice 
nor  right  in  charging  the  treaty  fund  with  more  than  $33  33  for  subsist- 
ence, nor  more  than  $20  for  removal.  That  was  the  sum  which  the 
United  States  was  willing  to  allow ;  the  sum  which  was  fixed  on  as  fair 
and  proper.  If  the  United  Stales  made  it  cost  more,  there  is  no  justice  in 
charging  the  excess  to  the  treaty  fund ;  but  all  such  excess  should  be 
borne  by  the  United  States.  So  of  the  removal.  The  Indians  were  de- 
tained more  than  a  month  after  they  were  assembled  and  ready  to  remove. 
This  expense  should  also  be  borne  by  the  United  States,  and  all  losses 
sustained  on  the  resale  of  provisions  which  were  not  needed  nor  con- 
sumed. 

As  to  the  justice  of  interest,  the  committee  have  no  doubt.  If  the  treaty 
fund  had  not  been  charged  improperly,  as  it  is  now  acknowledged,  the 
money  would  have  been  paid  twelve  years  ago.  This  was  in  nowise  the 
iault  of  the  Cherokees,  but  of  the  officers  of  the  government  of  the  United 
States.  The  Cherokees  have  for  all  this  time  been  deprived  of  the  use  of 
money  justly  due  them,  and  the  United  States  have  had  the  use  of  it  for 
their  own  benefit.  They  have  been  paying  interest  on  money  borrowed 
all  this  time,  and  would  have  had  to  pay  that  mterest  on  a  larger  sum  if 


5  [  157  ] 

they  had  paid  the  Cherokees  what  was  justly  due  them.  It  is  not  the 
case  of  a  claim  of  an  individual,  but  of  a  people  treated  with  as  a  nation  ; 
and  not  to  have  paid  it  was  a  violation  of  a  treaty,  and  must  be  repaid 
now.  For  the  claims  of  American  citizens  on  Mexico  and  other  govern- 
ments, interest  has  been  claimed  by  our  government  and  allowed. 

By  the  treaty  of  1S05  three  valuable  tracts  of  land  in  Tennessee  were 
reserved  to  the  Cherokee  nation,  and  guarantied  by  the  United  States. 
These  lands  were  taken  and  held  under  JNorth  Carohna  or  Tennessee 
grants,  and  the  Cherokee  nation  deprived  of  them.  They  ought  to  be 
paid  for,  and  your  committee  recommend  that  the  sum  of  $10,0UO  be  paid 
on  that  account  to  the  treasurer  of  the  Cherokee  nation.  So,  by  the  treaty 
of  1S19,  twelve  miles  square  were  reserved  in  Alabama  for  an  education 
fund,  amounting  in  all  to  93,-558  acres.  Of  these  lands  53,436  acres 
remain  unsold.  Your  committee  recommend  that  the  United  States  take 
these  lands  at  62|  cents  per  acre,  which  is  the  price  for  which  the  United 
States  sold  lands  of  less  value  in  the  west  to  the  Cherokees.  All  connex- 
ion of  that  people  with  the  country  east  of  the  Mississippi  is  now  dissolved, 
and,  considering  the  loss  which  they  have  suffered,  your  committee  think 
the  request  a  reasonable  one,  and  one  by  which  the  United  States  cannot 
lose  any  thing. 

Your  committee  see  no  just  ground  for  paying  for  the  public  buildings, 
turnpike  roads,  &c.,  in  the  Cherokee  country  east  of  the  Mississippi  river. 
The  committee  therefore  report,  and  recommend  the  adoption  of  the  fol- 
lowing resolutions : 

Whereas,  by  the  treaty  of  the  6th  of  August,  1S46,  between  the  United 
States  and  the  Cherokee  Indians,  certain  questions  were  agreed  to  be  sub- 
mitted to  the  decision  of  the  Senate  : 

1.  Resolved,  That,  in  the  opinion  of  the  Senate,  whatever  balance  of  the 
fund  of  .$5,000,000  stipulated  to  be  paid  to  the  Cherokee  nation  by  the 
treaty  of  the  29th  December,  1S35,  and  the  subsequent  additions  thereto, 
may  now  be  ascertained  to  be  due  to  the  said  Cherokee  nation,  shall  bear 
an  in'.erest  at  the  rate  of  five  per  cent,  per  annum  from  the  time  found  due 
until  the  same  be  paid  by  the  United  States. 

2.  Ri'solved,  That  the  charge  for  one  year's  subsistence  of  the  Chero'- 
kees,  after  their  arrival  in  the  west,  is  not  a  proper  charge  upon  the  fund 
of  $5,000,000  aforesaid,  but  should  have  been  paid  independently  of  that 
fund,  by  the  United  States. 

3.  Resolved^  That  the  expense  of  removing  the  Cherokees  to  the  west 
should,  in  like  manner,  have  been  borne  by  the  United  States,  and  not 
charged  to  the  fund  of  .§5,000,000  aforesaid. 

4.  Res'ilvffd,  That  the  United  States  will  pay  to  the  Cherokee  nation 
the  sum  of  §10,000  for  lands  guarantied  to  the  Cherokee  nation  by  the 
treaty  of  Tellico,  signed  25.th  October,  1S05,  and  of  which  the  said  Cher- 
okee nation  was  deprived  by  the  authority  of  the  State  of  Tennessee, 
and  the  further  sum  of  !t35,56S  for  the  balance  remaining  unsold,  by 
the  United  States,  of  a  leservation  of  twelve  miles  square  in  Alabama, 
secured  to  the  Cherokee  nation  by  the  treaty  of  2Tih  February,  1819, 
being  at  the  rate  of  62-^  cents  per  acre. 


r 


